IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 March 2014

      CASE NUMBER:  	AR20130015875
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions and a change to the narrative reason for discharge.

2.  The applicant states, in effect, he is attempting to upgrade his reenlistment code.  He contends he was far less mature than other Soldiers of the same age that had successfully completed military service.  He contends he was absent without leave (AWOL) because he feared being sent back to his father’s house a failure after being told he would be separated from the military.  He returned to basic training six months later and eventually graduated advanced individual training.  He contends there were several personal factors that caused him to go AWOL again which included the death of his grandfather and missing his parents.  He went AWOL a third time and was eventually sent to Fort Knox, Kentucky to be discharged.  He states that since being discharged he has a great career with the NYS Department of Corrections as a corrections officer and he has a part-time business as a web developer.  He contends his only hope for reentering the military is to gain honor and self-respect.  He desired for many years to correct his mistake for himself and his family name.  He would like to reenlist and fulfill his commitment.    
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			26 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				11 January 2002
d. Reason/Authority/SPD/RE Code:		In Lieu of Trial by Court-Martial, AR 635-200, 
Chapter 10, KFS, RE-4
e. Unit of assignment:				F Company, 447th Signal Battalion, Fort
Gordon, GA
f. Current Enlistment Date/Term:		2 November 1999/4 years
g. Current Enlistment Service:		1 year, 10 months, 3 days
h. Total Service:				1 year, 10 months, 3 days
i. Time Lost:					123 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		None
m. GT Score:					108
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			None
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			NIF
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 2 November 1999 for a period of 4 years.  He was 17 years old at the time of entry and had a General Equivalency Diploma (GED).  His record is void of any significant acts of achievement or valor.  He completed 1 year, 10 months, and 3 days of active duty service.  He was in advanced individual training (AIT) for the Military Occupational Specialty 31L, Cable System Installer-Maintainer, at Fort Gordon, Georgia.  When his discharge proceedings were initiated, he was at Fort Knox, Kentucky.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 123 days of time lost for being AWOL from 13 June 2000, until his apprehension on 19 September 2000.

2.  On 27 September 2000, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf.  

4.  On 11 December 2001, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 11 January 2002, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year, 10 months and 3 days of creditable active military service and accrued 123 days of time lost due to being AWOL.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 458 (Charge Sheet), dated 27 September 2000, reflects the applicant was charged with being AWOL from 13 June 2000 until 19 September 2000.

2.  DA Forms 4187 (Personnel Actions), dated 24 April 2000, 25 May 2000, 13 June 2000, 
14 June 2000 x 2, reflect the applicant’s duty status changed from present for duty (PDY) to AWOL; confined by military authorities to PDY; PDY to confined by civil authorities; confined by civil authorities to AWOL; and AWOL to dropped from rolls (DFR).
  
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 21 August 2013; an undated self-authored statement; an email naming The American Legion’s Mr. P as counsel for the applicant, dated 30 August 2013; a Basic Course for Peace Officers completion certificate with credentials, dated 8 February 2008; two letters of support from Mr. G and Mr. B.; two Certificates of Live Birth; a statement, dated between 24 September 2012 and 29 September 2013; an Experian Credit Report for the applicant, dated 24 September 2013; a DD Form 214; his enlistment contract, dated 2 November 1999; and, a DA Form 2-1, dated 3 November 1999.

POST-SERVICE ACTIVITY: 

The applicant states he has been a corrections officer for the past 13 years with the NYS Department of Corrections, and owns a part-time business as a web developer. 

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

3.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization, change to the narrative reason for his discharge and reentry code was carefully considered.  However, after examining the applicant’s record of service, the issue and document submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that he was young and immature at the time of the discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The applicant desires to rejoin the Military Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

6.  Therefore, the reason and characterization of service being both proper and equitable, recommend the Board deny relief.





SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance     Date:  11 March 2014     Location:  Washington, DC

Did the Applicant Testify?  Yes

Counsel: Larry Provost
		    1608 K Street NW
		    Washington, DC 20006

Witnesses/Observers:  Yes - Mother 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents:

2.  The applicant presented the additional contentions:

	a.  Change the narrative reason for separation to ‘Secretarial Authority’.
	b.  Change the reentry eligibility code to 1.

In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  2	No Change:  3
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		No Change
Grade Restoration to:		NA
Other:					NA






Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130015875



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1